So what is probable cause? Is there ever a time when an officer has the right due to probable cause to search? Or do they always have to produce a warrant?

ETA; I do enjoy learning about this because I really don't know much at all.

This is where it gets sticky. Probable cause is a reasonable suspicion that you may have or are about to commit a crime. There is a set of criteria that the officer must use, but a lot of it is up to his discretion. He/she shouldn't just use it an excuse to search whoever they want because it will be challenged in court, and could be serious liability if the search is fruitless.

Also, probable cause works well for a personal or vehicle search, but to enter someone's property would pbly require a little higher standard.

Joyce, yhere's another part of this story that's not covered in the article.

Modern technology is seeking to replace detection dogs with mechanical sniffers. Whether or not the Supreme Court upholds decsisions in cases involving challenges to detection dog testimony will have a bearing on how laws for mechanical sniffers are formed. One of the common challenges that lawmakers anticipate would come in a case where a policeman uses a sniffer from outside of your property to detect whether you have contraband on your property.
So far, the court has pretty much upheld that LE must obtain a warrant to use any tool (dog, wiretap, whatever) during a search of private property (unless consent is given).

 Quote: Duane Hull

This is where it gets sticky. Probable cause is a reasonable suspicion that you may have or are about to commit a crime. There is a set of criteria that the officer must use, but a lot of it is up to his discretion. He/she shouldn't just use it an excuse to search whoever they want because it will be challenged in court, and could be serious liability if the search is fruitless.

Also, probable cause works well for a personal or vehicle search, but to enter someone's property would pbly require a little higher standard.

Probable cause is a higher standard than reasonable suspicion. Probable cause is facts that will cause an ordinary person to believe there is more of a chance than less of a chance, that a crime was committed. Reasonable suspicion can be circumstances that would lead one to a conclusion. The difference is, probable cause is always based on facts. Probable cause is what's used to obtain a warrant. The response of the dog is considered probable cause and, under certain circumstances, allows the officer to forgo obtaining the warrant. One specific circumstance would be a vehicle. The USC has held in the past, the response of a dog on a vehicle, gives the officer the same probable cause as would be needed for a search warrant. The search of the vehicle can be conducted absent a warrant. Calling the dog's proficiency into question in nothing new. I've testified in both State and Federal court on numerous occasions and the first avenue of defense is generally to discredit the dog. If that happens, the evidence is usually inadmissible and the case goes away without evidence. Personally, I feel law enforcement will not prevail on the case involving the residence, but will prevail (I say this not having seen the dog's training records) on the case involving the vehicle. Of course if law enforcement lacks training records or the records show the dog is less than "probable cause", then LE would not prevail there as well. Since probable cause is more likely than less likely (talk about nebulous) perfection is not required. Meaning, if LE can demonstrate through training and utilization records that the dog is has a high percentage of accuracy, it should not be a problem. I've spend my entire career as a police trainer stressing the importance of training and documentation of that training. This is where is can pay off.

ETA definition: Probable cause is the level of evidence held by a rational and objective observer necessary to justify logically accusing a specific suspect of a particular crime based upon reliable objective facts.

DFrost

Thanks for the detailed explanation David. I have really enjoyed learning something that I didn't know much about.
Very interesting stuff, I find it fascinating!

 Quote: Duane Hull

The dog sniffing IS a search. That's why the court found the way they did. The dog is not giving a clue; he is performing a search for drugs (or bombs or cash or whatever).
The police (including the dog) cannot come on your property and execute a search unless they have a warrant or you consent to be searched without a warrant. If they enter your property (yard porch, back 40), it is an intrusion.

The article is reporting court proceedings. It is not offering an opinion on the correctness of the polices' actions.

The supreme court historically has ruled that a K9 "Sniff" is NOT a "Search". That's why PSDs can do what they do. In the Jardine case it can be reasonable to assume that officers not lawfully on a persons' private property, and utilizing a dog to sniff for drugs can indeed be a "Search".

In the Harris case dog "Sniffs" haven't been considered "Searches" by the Supreme Court because those "Sniffs" take place in the public where no real expectation of privacy is guaranteed. A "Sniff" of free air by the dog is much like the police on a traffic stop getting smacked in the face with a whiff of marijuana. Is that a search by the officer that requires a search warrant? No. There are other mitigating factors but thats the gist of it.

Read the Harris case. It primarily addresses the dogs' training and reliability, as well as the officers record keeping and testimony.

 Quote:

In the Harris case dog "Sniffs" haven't been considered "Searches" by the Supreme Court because those "Sniffs" take place in the public where no real expectation of privacy is guaranteed. A "Sniff" of free air by the dog is much like the police on a traffic stop getting smacked in the face with a whiff of marijuana. Is that a search by the officer that requires a search warrant? No. There are other mitigating factors but thats the gist of it.

This is the kind of thing I was thinking of originally, thanks for clarifying it Howard!

David and Howard;

Thanks for joining in. Tha gives me a better understanding of probable cause. I also see how one "sniff" could be considered a search, while another is not.

I'm curious about one other thing; at what point does a dog get involved with a traffic stop? Would it be based on a reasonable suspicion by the officer?
In the case that LE would start using mechanical sniffers, I'm assuming the officer could be using it any time you interact with him/her. Or would they have to have a reasonable suspicion or probable cause to use it?

 Quote: Duane Hull

David and Howard;

Thanks for joining in. Tha gives me a better understanding of probable cause. I also see how one "sniff" could be considered a search, while another is not.

I'm curious about one other thing; at what point does a dog get involved with a traffic stop? Would it be based on a reasonable suspicion by the officer?
In the case that LE would start using mechanical sniffers, I'm assuming the officer could be using it any time you interact with him/her. Or would they have to have a reasonable suspicion or probable cause to use it?

An officer does not need suspicion of any kind to have the dog sniff the outside of a vehicle during an otherwise legal traffic stop. The biggest area of concern is the length of time. Generally the courts have ruled that the traffic stop can not be longer than a normal stop for whatever reason a person was stopped, absent additional suspicion. In other words, the length of the traffic stop is in direct proportion to the amount of suspicion an officer has built during the stop. If the dog is immediately available, such as the K9 officer made the original stop or was an immediate backup unit, and it did not extend the time of the traffic stop, then no suspicion is necessary. Make sense?

As for mechanical sniffers, I really can't comment as I just don't know what the law would be. I know there are some restrictions, just not sure what they are.

By the way, Howard, thanks for bringing up the decision of the court that the dog is NOT considered a search. I did forget to put that in my comments.

DFrost

 Quote: David C.Frost

An officer does not need suspicion of any kind to have the dog sniff the outside of a vehicle during an otherwise legal traffic stop.

If the officer is not suspicious, why would the dog be deployed?